Opinion
No. CV 00-13001 GAF (RZx)
October 16, 2002
ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This is an action under 42 U.S.C. § 1983 brought by plaintiff H. N. Dang ("Dang") against the City of Compton and several of its police officers. Dang claims that the business that he managed was illegally entered and searched, and that he was falsely arrested and subjected to excessive force, all in violation of the Fourth Amendment. Dang originally brought claims against numerous defendants, including police officers and city council members. However, all defendants, except for defendants Gilbert Cross ("Defendant Cross") and Hourie Taylor ("Defendant Taylor"), have been dismissed from the case. (Opp. at 6). Likewise, plaintiff has abandoned his conspiracy claim (Second Cause of Action), his racially-motivated conspiracy claim (Third Cause of Action), and has not opposed the present motion with respect to his Fourteenth Amendment claim. Accordingly, the Court addresses here the summary judgement motions with respect to the two remaining defendants and Dang's Fourth Amendment claims.
On June 3, 2002, Dang filed a motion under Federal Rule of Procedure 41(a)(2) to voluntarily dismiss all defendants except Defendant Cross. Dang later amended his motion to indicate that he still wished to proceed with his claims against Defendant Taylor. On June 12, 2002, the Court dismissed all defendants except Defendants Cross and Taylor, who now move for summary judgment.
Because the undisputed facts establish that Defendant Cross had probable cause to enter and arrest Dang and to perform a search incident to that arrest, Dang's claims based on that conduct should be dismissed. However, the Court concludes that material issues of fact remain for trial regarding the amount and type of force employed by Defendant Cross used during Dang's arrest. Accordingly, the Court GRANTS Defendants Motion for Summary Judgment for Defendant Cross as to the unlawful entry, search, and arrest claims, but DENIES the motion as to the excessive force claims.
The Court notes that this Order vanes from the oral tentative order given at the September 16, 2002 hearing. Upon further review of the papers and the applicable law, the Court has determined that the search of the Compton Jewelry Exchange and Dang's subsequent arrest did not violate his Fourth Amendment rights.
As to Defendant Taylor the Court concludes that Dang has failed to raise any issue of material fact suggesting that Defendant Taylor participated in the incident, that he bears supervisory liability for the incident, or that the offending actions are part of a custom or policy of the City of Compton. Therefore, the Court GRANTS Defendant's Motion for Summary Judgment as to Defendant Taylor.
II. FACTUAL BACKGROUND
The following facts are undisputed, or found by this Court to be without substantial controversy.
A. THE PARTIES
Dang, a resident of Anaheim, California, was arrested by Compton Police officers on December 17, 1999. (See Statement of Undisputed Facts ("SUF") ¶ 1).
Dang filed a Statement of Genuine Issues ("SGI") responding to Defendants' SUF. In his SGI, Dang disputes several of the facts put forth in the SUF, and he provides applicable citations in support of the disputed issues and facts. However, where Dang does not dispute a fact, he provides no information or affirmative acceptance of the fact as uncontroverted. Therefore, when citing to a fact that Dang does not dispute, only the SUF will be cited. If Dang takes issue with a fact put forth in the SUF, a citation to the SGI will be included.
Defendant Cross was an officer with the Compton Police Department from 1976 to September 17, 2000. (SUF ¶ 22). Defendant Taylor was the Chief of Police for the Compton Police Department from April 24, 1992 to August 16, 1999. (SUF ¶ 22). Defendant Taylor was on administrative leave from August 16, 1999 until his retirement on September 18, 2000. (SUF ¶¶ 19, 20; SGI ¶¶ 19, 20). B. DANG'S ARREST
Dang does not sufficiently refute the facts relating to Defendant Taylor's employment put forth in paragraphs 19 and 20 of Defendants' SUF. Instead, Dang conclusorily states that he disputes the "extent [to which] Taylor was not policymaker and responsible for the policies and customs that continued in force on 12/17/99" without citation to any evidence. Dang's purported dispute with Defendant Taylor's inactive status is equally insufficient: he conclusorily states that Defendant Taylor's inactive status is irrelevant, a conclusion with which the Court disagrees.
On December 17, 1999, several Compton Police Officers ("Officers") participated in an investigation of the Compton Jewelry Exchange ("Jewelry Exchange"), which was suspected of operating as a pawn shop without a license. (SUF ¶ 1). A female undercover Officer was provided a man's ring and instructed to attempt to pawn the ring to the store manager. (SUF ¶ 12). Dang, the shop manager, was running the store. (SUF ¶ 13). The female Officer, in possession of a man's diamond ring, entered the store and made contact with Dang. (SUF ¶¶ 2-3). Dang agreed to take the ring in exchange for $100, and gave the undercover officer 30 days to repay the $100 and reclaim the item before putting it up for sale. (Dang Depo. at 62-67). Upon completion of the transaction, the Officer left the store and advised Defendant Cross that she had pawned the ring. (SUF ¶¶ 4-5).
Shortly thereafter, several Officers, including Defendant Cross, entered the store and informed Dang that he was under arrest. (SUF ¶¶ 6, 8; SGI ¶¶ 6, 8). Dang was in an office, separated from the salesroom where the Officers stood by a bulletproof window and a steel security door. (SUF ¶ 7). At the Officers' request, Dang opened the security door. (SUF ¶ 9; SGI ¶ 9; Dang Depo. at 72-73). The Officers arrested Dang for violating California Penal Code sections 639(a) (acceptance of a bribe), 496(a) (receiving stolen property), and 148(a)(1) (resisting arrest). (SUF ¶ 10; SGI ¶ 10). The Officers then handcuffed Dang. (SUF ¶ 19). When the Officers asked Dang to produce the ring that had allegedly been purchased from the undercover Officer, Dang indicated that the ring was stored in his safe. (Id. ¶ 11). Dang's handcuffs were removed, and he was instructed to retrieve the ring. (Id. ¶ 12). Dang kept a handgun in the safe. (Id. ¶ 13). As Dang reached into the safe, an unidentified Officer pulled Dang away from the safe. (Id. ¶ 14). A struggle ensued in which Dang was injured. (Mot. at 14; Cross Depo. at 33; Dang Depo. at 79). The Officers took Dang from the store to the Compton Police Department for booking and then to Martin Luther King, Jr. Hospital for medical attention. (Id. ¶ 15). Later that day, Dang was transferred to the Los Angeles County Jail. (Id. ¶ 16). Dang was released the following day. (Id. ¶ 17).
Dang does not dispute that he opened the door. Rather Dang contends that the entry was not consensual.
Dang does not dispute arrest. Rather Dang contends that there "was no legal cause for arrest."
This fact was not included in either the SUF or SGI, but it is not disputed in either Dang or Defendant Cross's depositions.
III. SUMMARY OF CLAIMS AND ISSUES
The events of December 17, 1999, gave rise to Dang's civil rights complaint, which now includes only the Fourth Amendment claims against Defendants Cross and Taylor. Dang claims that the Officer's entry, arrest, search, and use of force violated his Fourth Amendment rights. He sues Defendant Cross in his individual capacity because he was a participant in the events that allegedly violated Dang's constitutional rights; he sues Defendant Taylor in both his individual and official capacities because of his alleged supervisory responsibility for the events and because the alleged civil rights violations arose from the customs, policies, and practices of the Compton Police Department. Because the Court concludes, on the undisputed facts, that the Officers had probable cause to arrest Dang, the entry, arrest, and search (if indeed it was a search) incident to the arrest were proper and in compliance with the requirements of the Fourth Amendment. Likewise, the Court concludes that no evidence has been presented to permit the case to go forward against Defendant Taylor in either his individual or official capacities. However, genuine issues of material fact exist regarding the use of force during the arrest, and therefore the Court cannot resolve that claim. Accordingly, the case will proceed to trial as against only Defendant Cross, and only on the claim for excessive use of force.
The Court does note that it can and does resolve the claim of qualified immunity, which is an immunity against suit, in favor of plaintiff. Plaintiff asserts that he was kicked in the groin by defendant Cross after he was arrested and taken into custody; Officer Cross denies engaging in such conduct. While the Court cannot resolve the factual dispute, the Court can and does conclude, on the record before it, that, if it did occur, no reasonable officer could have concluded that such conduct was consistent with the constitution. Accordingly, the Court concludes that an appeal to the Ninth Circuit on the qualified immunity issue would be without merit. See Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992).
IV. DISCUSSION
A. STANDARD OF REVIEW FOR SUMMARY JUDGMENT MOTIONS
Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Proc. 56(c). Thus, when addressing a motion for summary judgment, this Court must decide whether there exist "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Id. at 256. A party opposing a properly made and supported motion for summary judgment may not rest upon mere denials but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e). In particular, when the non-moving party bears the burden of proving an element essential to its case, that party must make a showing sufficient to establish a genuine issue of material fact with respect to the existence of that element or be subject to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, (1986).
An issue is genuine if evidence is produced that would allow a reasonable jury to reach a verdict in favor of the non-moving party. See Anderson, 477 U.S. at 248. The Court will assume the truth of direct evidence set forth by the opposing party. See Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir. 1992). However, where circumstantial evidence is presented, the Court may consider the plausibility and reasonableness of inferences arising therefrom. See Anderson, 477 U.S. at 249-50; TW Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626. 631-32 (9th Cir. 1987). In that regard, "a mere `scintilla' of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some `significant probative evidence tending to support the claim.'" Summers v. Teichert Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997) (quoting Anderson, 477 U.S. at 252, 249); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288 (9th Cir. 1987) (holding that summary judgment may be granted if "the evidence is merely colorable . . . or is not significantly probative").
B. DEFENDANT GILBERT CROSS
Dang contends that Defendant Cross violated his Fourth Amendment rights by unlawfully entering and searching the Jewelry Exchange and subjecting him to an illegal arrest and excessive force. (Opp. at 6). The individual components of Dang's Fourth Amendment claims are examined below.
The Court notes that Dang's complaint originally included a Fourteenth Amendment claim for baseless prosecution. No such claim exists under existing Section 1983 jurisprudence. See Albright v. Oliver, 510 U.S. 266 (1994) (holding that there is no substantive due process right to be free from criminal prosecution without probable cause and therefore such claims must be analyzed in terms of a violation of the plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures).
1. Unlawful Entry
Dang contends that Defendant Cross violated his constitutional rights because the entry into his business premises was non-consensual, and performed without a warrant or probable cause. (Opp. at 19-22). Business owners and employees possess a diminished expectation of privacy with regard to business premises, particularly those of a closely regulated business. See Donovan v. Dewey, 452 U.S. 594, 598-99 (1981); New York v. Burger, 482 U.S. 691, 700-02 (1987). Although entry into one's home to conduct an arrest would ordinarily require a warrant, Payton v. New York, 445 U.S. 573 (1980), the warrant requirement does not apply where officers are otherwise lawfully present on the premises through implied consent, as in the case of commercial premises open for business. E.g., United States v. Blalock, 578 F.2d 245, 248 (9th Cir. 1978). Defendant Cross clearly had probable cause to enter the Jewelry Exchange and seek out Dang on the basis of information provided to him regarding the undercover pawn transaction that occurred immediately preceding the entry and arrest. (Mot. at 12-13; Cross Decl. ¶ 4). Given the totality of the circumstances, Defendant Cross's decision to enter the Jewelry Exchange was reasonable and based on sufficient probable cause that an offense had occurred. Since his entry did not violate the Fourth Amendment, the Court GRANTS Defendants' motion with respect to the Unlawful Entry claim.
2. False Arrest/Seizure
Dang contends that he was subject to a false arrest and seizure by Defendant Cross. (Compl. ¶ 9). Defendant Cross maintains that he had probable cause to arrest Dang. (Mot. at 12-13). Alternatively, Defendant Cross asserts that, if the arrest was not legally justified, he is entitled to a qualified immunity defense because his actions were reasonable. (Id. at 13-14).
The Fourth Amendment states that people have the right "to be secure in their persons . . . against unreasonable searches and seizures . . ." U.S. Const. amend. W. Under the Fourth Amendment, an arrest without a warrant is lawful only if it is supported by probable cause to make the arrest. See United States v. Buckner, 179 F.3d 834, 837 (9th Cir. 1999). Dang asserts that he did not commit any crime and that he was arrested without either a warrant or probable cause. (Opp. at 21-22). Whether or not Dang committed the crime is not the issue. Rather, the question is whether Officer Cross had probable cause to believe that Dang had committed a crime. The undisputed facts, corroborated by Dang's own deposition, establish that he allowed an undercover police officer to pawn an item of jewelry immediately prior to his arrest. She communicated those facts to Officer Cross and others, which established the basis for their belief that they had probable to arrest. On these facts, the Court concludes as a matter of law that no Fourth Amendment violation occurred in connection with Dang's arrest. Therefore, the Court GRANTS Defendants' motion with regards to the False Arrest/Seizure claim.
3. Seizure of the Pawned Items
Dang contends that any search conducted in connection with his arrest violated the Fourth Amendment because the officers had no search warrant. This apparently constitutes a challenge to the Officer's demand that Dang produce the ring that he took in the transaction with the undercover Officer. While these facts do not appear to describe a "search" of the premises, they do describe a "seizure" of the ring since Dang was asked for and proceeded to produce the ring, which he had placed in a safe on the premises. This seizure did not violate the Fourth Amendment.
Officers generally may conduct a search incident to, or immediately following, an arrest to prevent the concealment or destruction of evidence, or to ascertain the presence of a weapon to insure officer safety. See, e.g., Chimel v. California, 395 U.S. 752 (1969). Having found that the Fourth Amendment permitted the officers to enter the premises and conduct the arrest, the officers were permitted to conduct a limited search and seizure incident to the arrest. From the information provided by the undercover officer, the officers knew that evidence of the illegal transaction should be on the premises and near at hand when Dang was arrested. Requesting that Dang produce the item upon arrest was permitted under Chimel and its progeny. See also Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) (warrantless search of regulated business premises permitted in furtherance of regulatory scheme). Accordingly, because the Court concludes that the seizure of the pawned item at the time of the arrest did not violate Dang's Fourth Amendment rights, the summary judgment motion as to this claim is GRANTED. 4. Use of Excessive Force
Dang contends that he was subjected to excessive force at the time of the arrest. Shortly after Dang was placed under arrest, Dang was instructed to open his safe and retrieve the ring that he had received from the undercover Officer. (Cross Depo. at 28). After he opened the safe, Dang alleges that he was grabbed, subjected to a choke hold by an unnamed Officer, was repeatedly kicked by several officers, and kicked in the groin by Defendant Cross. (Dang Depo. at 75-79). Dang contends that Defendant Cross's kick to the groin area may have contributed to a loss of consciousness. (Id. at 78-79). Dang contends that he subsequently required medical treatment and that the kick(s) caused bruising. (Dang Depo. at 83-85).
Defendant Cross does not dispute Dang's allegations of physical contact; he admits that he struck Dang in the face and witnessed a fellow Officer place Dang in a choke hold. (Cross Depo. at 35-40). However, Defendant Cross denies kicking Dang and contends that the measure of force was necessary to subdue Dang and to protect his fellow Officers. Further, Defendant Cross contends that if the level of force was not warranted, Dang's claim of excess force against Defendant Cross is barred by qualified immunity. (Mot. at 13-14).
Questions of reasonableness are generally questions of fact best left for a jury, particularly in cases where the facts regarding the use of force are in dispute. Cf. Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001) ("Whether the officers acted reasonably, however, is a legal determination in the absence of disputed material facts. Although the reasonableness standard is inevitably fact dependent, it should not be reserved for the jury in the absence of disputed material facts" (internal citations omitted)). Dang states unequivocally in his deposition that he was kicked rather than hit by Defendant Cross (Dang Depo. at 79), which contradicts Cross's version of events. Likewise, Defendant Cross contends that he struggled with Dang, employing force, because he wanted to prevent Dang from arming himself with the gun that Dang kept in his safe, but Dang has never conceded that he was attempting to retrieve a gun. Dang clearly states that he opened the safe at the Officers' direction to retrieve a ring and a sales slip. (Dang Depo. at 76). If Dang was not attempting to retrieve his gun, then there would be no reasonable need for Defendant Cross to employ significant force against Dang. Therefore, there is a factual dispute involving the circumstances under which Defendant Cross struggled with Dang and whether Defendant Cross had probable cause to employ force against Dang.
The factual dispute that exists with respect to the need for force prevents the Court from determining whether, under the circumstances, the force employed by Defendant Cross was excessive or objectively reasonable. Accordingly, the Court denies Defendants' motion with respect to the Excessive Force claim.
C. DEFENDANT HOURIE TAYLOR 1. Individual Capacity Liability
Defendant Taylor is entitled to summary judgment as to the individual capacity claim unless Dang has created a genuine issue of triable fact as to Defendant Taylor's personal involvement in Dang's injury — an element required for individual liability under Section 1983. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (stating that "[l]iability under § 1983 must be based on the personal involvement of the defendant"). Rather than present evidence of Defendant Taylor's personal involvement, Dang relies solely on a misprint in Defendants' SUF which stated that Defendant Taylor " had personal involvement with the subject incident." (Reply at 3; SUF ¶ 30) (emphasis added). However, Defendants filed a Notice of Errata disclosing the error and Defendant Taylor's declaration states that he "had no personal involvement" in the incident. (Not. Errata ¶ 30; Reply at 3; Taylor Decl. ¶ 5) (emphasis added). Dang has not alleged facts sufficient to show that Defendant Taylor was personally involved in the incident. Therefore Defendant Taylor may not be found individually liable under Section 1983 in his individual capacity.
2. Official Capacity Liability a. Individual Supervisory Liability
Alternatively, Dang argues that Defendant Taylor is liable in his official capacity as a supervisor or policymaker for the Compton Police Department at the time of the incident. (Opp. at 23). "`A supervisor may be liable if there exists . . . a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation.' Supervisory liability exists even without overt personal participation in the offensive act if a supervisory official implements a policy so deficient that the policy `itself is a repudiation of constitutional rights' and is `the moving force of the constitutional violation.'"Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)).
To establish individual supervisory liability, Dang must "show the supervisor breached a duty to [him] which was the proximate cause of the injury . . . . `The requisite causal connection can be established . . . by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.'" Redman, 942 F.2d at 1447 (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)). Defendants contend that Dang has not met his burden of establishing that Defendant Taylor is the creator of the allegedly illegal practices. (Reply at 4). Defendants also contend that Dang has failed to identify precisely which policies allegedly caused Dang's injuries. (Id. at 5).
Dang relies on a statement in Defendant Cross's deposition in which Defendant Cross states that at the time of the arrest, he was acting in conformity with Compton Police procedures. (Opp. at 23). However, such statements are insufficient to establish that Defendant Taylor promoted unlawful procedures, customs, or practices. To survive summary judgment, Dang must demonstrate a genuine issue of material fact that a policy, practice, or custom created or promoted by Defendant Taylor was the moving force that led to Dang's injury. See Soto v. City of Sacramento, 567 F. Supp. 662, 674 (E.D. Cal. 1983) (denying summary judgment motion because plaintiff failed to demonstrate absence of material facts relating to excessive force claim). Dang has not shown that Defendant Taylor designed or condoned any practices designed to deprive federal rights.
b. Monell Liability for a Well-Established Practice or Procedure
Even if Dang is unable to establish that Defendant Taylor is personally liable for an allegedly unconstitutional practice, Dang may establish that the Compton Police Department is liable, under Monell liability.See Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978);Larez, 946 F.2d at 646 ("A suit against a government officer in his official capacity is equivalent to a suit against the government entity itself"). To successfully plead a Monell claim, Dang must demonstrate that the alleged action "was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997). An act performed pursuant to a general practice or procedure that has not been formally approved by an appropriate decision-maker, "may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." Monell, 436 U.S. at 404; see also Gibson v. County of Washoe, 290 F.3d 1175, 1185-86 (9th Cir. 2002). Accordingly, Dang must provide evidence that the policy at issue is both pervasive and widespread. However, Dang has not demonstrated that the Compton Police procedures, policies or customs violate his, or anyone else's, constitutional rights.
Dang states in his deposition that he has no knowledge of any previous incidents of Compton police officers attacking individuals, nor does he have any information that the Compton police department failed to train these or other officers. (Dang Depo. at 92-3). Viewing Dang's evidence in the light most favorable to him, the undisputed evidence falls far short of "establishing a `persistent and widespread' practice such that it constitutes `permanent and well settled' city policy." Hernandez v. Gates, 100 F. Supp.2d 1209, 1215 (C.D. Cal. 2000).
Accordingly, the Court finds that Defendant Taylor cannot be found not liable in his official capacity under Section 1983 nor can any illegal practice or custom be imputed to the Compton police department pursuant toMonell.
IV. CONCLUSION
For the reasons stated above, Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART, and the Court makes the following order:• Defendants' motion is GRANTED with respect to Defendant Taylor.
• Defendants' motion is GRANTED with respect to the unlawful entry, unlawful arrest, and illegal search/seizure claims against Defendant Cross
• Defendants' motion is DENIED with respect to the excessive force claim against Defendant Cross.
IT IS SO ORDERED.